On November 21, 2012, Jennifer Campbell, the former District of Columbia Chief Operating Officer for the Department of Health Care Finance, filed suit against three companies that she alleged made defamatory statements about her, which she alleges directly led to her termination by the District of Columbia.

The complaint alleges that, in a June 11, 2012 column in the City Paper, it was reported that two of the defendants, who were allegedly in discussions to provide services to the District of Columbia in a multi-million dollar contract, alleged that Campbell had attempted to exert undue and improper influence over the contracting process, and that this led to her termination. The complaint alleges that the statements were untrue, but that they were then repeated in other media outlets (see the Washington Post story here).

The complaint asserts a variety of legal theories, including defamation, intentional infliction of emotional distress, and intentional interference with contractual relations. In addition to seeking compensatory damages, lost wages/benefits, and punitive damages, it demands “[a]n order directing Defendants to retract their false statements and publicly apologize to Plaintiff.” (See further discussion of suit here).

Earlier this month, one of the defendants – Compass Solutions, LLC – moved to dismiss the suit under the anti-SLAPP statute. (Notably, Compass is represented by the same firm that represented Richard Lehan, against whom an anti-SLAPP motion was successfully made). Compass argues persuasively that the statements were made “in furtherance of the right of advocacy on issues of public interest” because they were made in connection with an issue under consideration by the executive branch and in connection with an issue of public interest (i.e., contracts under the Patient Protection and Affordable Care Act of 2010).

Perhaps anticipating a potential argument from Campbell, Compass argues that, while the statute carves out issues of “private interest” from its coverage, which are defined as “statements directed primarily toward protecting the speaker’s commercial interests rather than toward commenting on or sharing information about a matter of public significance,” DC Code § 16-5501(3), the statements at issue here do not fall within this exception:

Compass’s statements to Director Turnage were not primarily directed toward protecting the speaker’s commercial interests, as they sought to aid Director Turnage to identify corruption and improprieties in his department and eliminate waste of public funds. The statements related not just to performance of a contract that was already in place, but also a concern over how the Patient Protection and Affordable Care Act was being implemented. Corruption in government contracting is always an issue of public concern.

Turning to the merits of the claim, Compass first argues that none of the statements it allegedly made constitute defamation per se because they did not impute: (a) a serious criminal offense; (b) a loathsome disease; (c) a matter incompatible with Campbell’s business, trade, profession, or office; or (d) serious sexual misconduct. Compass also argues that any statement it allegedly made was not defamatory because it did not make Campbell appear “odious, infamous or ridiculous.”

I suspect that Campbell will focus her attention on this argument, and argue that the challenged statements arguably charged her with a serious criminal offense and, at a minimum, alleged conduct incompatible with her office (e.g., improperly steering contracts to favored companies).

Compass also argues that the defamation per se and the defamation counts fail because no statement in the June 11, 2012 column is directly attributed to Compass. This is a potentially dispositive argument as the column reports only that: “Turnage also writes that he’d received an allegation that Campbell was trying to steer another contractor, Compass Consulting, toward a different potential partner, Cedrick Simon.”

Compass next argues that, while Campbell’s termination letter directly attributed statements to Compass, because these statements were accurate, no defamation claim can lie. This argument is premature and should be rejected by the Court. While Compass might be able to later prove that the statements were not false, that is not proper at this stage of the proceedings.

Perhaps realizing this, Compass argues that, even if the statements were false, they were privileged and thus cannot be the subject of a defamation action. According to Compass, it had a “common interest” to share the information with Campbell’s supervisor. (The “common interest” privilege generally protects defamatory statements that are made in good faith to an individual with an interest in the statement).

Thus, argues Compass, because the statements were privileged, that privilege can only be overcome, and the suit allowed to proceed, if Campbell can show that the statements were made with malice. Compass argues that the Complaint does not plead any facts showing that the statements were made with malice, and, in fact, the appended declaration of its owner confirms that they were not made with any malice. (To be clear, the Complaint does allege that the defendants were “motivated by malice,” but there are no facts in support of this conclusory allegation, which is Compass’s point).

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About: Leslie Machado

Mr. Machado counsels and advises a diverse range of clients on various areas of law. He is also an experienced litigator, having tried cases to verdict in state and federal courts. View all posts by Leslie Machado →

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